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Multiple instances of 'non-serious' misconduct can amount to 'serious misconduct'

The Court of Appeal has overturned four findings of 'serious misconduct' made by a GMC fitness to practise panel (the panel) in respect of a doctor (S), on the basis that it had not been open to the panel to find those matters proved on the available evidence. The court has also confirmed that, in principle, a number of instances of non-serious misconduct may cumulatively amount to serious misconduct.

The GMC hearing

S faced 12 charges which were heard over 40 days, during which 28 witnesses gave evidence. The panel made four findings of fact which it concluded amounted to serious misconduct, namely that:

S had shouted at a colleague, M, in front of patient B in a fracture clinic

S had been rude and verbally aggressive to M during a fracture clinic when M had reminded S that a patient (patient C) was waiting to be seen

after failing to attend on patient C at the fracture clinic, S had again been rude and verbally aggressive towards M; and

during the treatment of patient D, S had refused M's request for further investigations into patient D's calf pain.

The panel also made six findings of fact which it said amounted to misconduct but not serious misconduct. Under the regime which operates in GMC cases, 'non-serious' misconduct cannot form the basis of a finding that a registrant's fitness to practise is impaired.

The panel found that S had demonstrated a pattern of behaviour, especially when challenged, whereby she responded inappropriately and in a manner not befitting a doctor. It also found that she had demonstrated little insight into her behaviour and that, notwithstanding (i) the difficult conditions in which she had been working, (ii) her previous good character, and (iii) positive testimonials from colleagues, it was not satisfied that her conduct would not be repeated in future.

It concluded that her fitness to practise was impaired by reason of her misconduct and imposed nine conditions on her registration, including requirements that she actively engage with local mentoring, and undertake courses in anger management and consultation skills.

S appealed to the Administrative Court and the panel's decision was upheld. She then appealed to the Court of Appeal (the court).

Grounds of appeal

The court found that four issues arose before it for determination, namely:

Had the panel taken into account the proven incidents of non-serious misconduct in determining whether S's fitness to practise was impaired?

Was the panel right to find each of the four instances of serious misconduct proved?

Was the panel right to find that S's fitness to practise was impaired as a result of the misconduct which had been proved?

The court found that, notwithstanding that the panel had expressly stated that it was taking into account only findings of serious misconduct when determining impairment, on a fair reading of the panel's decision as a whole it was not possible to say that the panel took no account of the findings of non-serious misconduct. The court pointed to the fact that the panel had expressed concern about a 'pattern' of behaviour on the part of S, which pattern the court found must have included incidents which were not found to have been serious misconduct.

In relation to instance 1, namely that S had shouted at M in front of patient B, the court noted that M had not said during cross-examination that S had shouted at him in front of patient B, only that S had screamed at him (M) that day. Additionally, it had not been put to S in cross-examination that she had shouted at M in front of patient B.

In respect of instances 2 and 3, namely that S had been rude and aggressive towards M, the court again noted that M had given general evidence about S behaving inappropriately and rudely, but had not given evidence that she had been rude and aggressive to him on the two specific occasions charged.

The court therefore found that it had not been open to the panel, on the basis of the evidence available to it, to find that the instances of serious misconduct in instances 1 to 3 had been proved.

In respect of instance 4, namely that S had refused to investigate a complaint by a patient, the court found that this amounted to an allegation that S had not acted appropriately when a patient presented with symptoms of deep vein thrombosis (DVT). The court found that it was clear that S had considered the possibility that the patient was suffering from DVT and had made a clinical judgment not to administer any treatment. Additionally, the panel had heard evidence from three experts who had not agreed in their assessment of clinical aspects of the case.

The court found in the circumstances that "it is hard to see how this clinical judgment can be serious misconduct without the panel finding that no reasonably competent and professional orthopaedic registrar could have acted as she did. No such finding was made…". The court concluded that the panel had been "simply wrong" to ignore the differing expert opinions offered and, in the circumstances, the decision in this regard was wrong and could not stand.

The court's findings in relation to issues 1 and 2 meant that the panel had been wrong to find that S's fitness to practise was impaired (issue 3) and that it could not properly have imposed conditions on S's practice (issue 4).

Can multiple instances of non-serious misconduct amount to serious misconduct?

The GMC also asked the court to determine, as an issue of general importance, whether it is open to a fitness to practise panel to conclude that a series of findings of non-serious misconduct collectively constitute serious misconduct.

Vos LJ, who gave the leading judgment, said: "I would not think that … such a course in a very unusual case on very unusual facts should be ruled out, but I would prefer to leave the argument for a case in which such facts were said to arise." He went on to say that in a "normal case" he did not think that a few individually non-serious allegations could or should be regarded collectively as serious misconduct and, on the facts of the present case, the non-serious allegations found proved against S could not accumulate to a finding of serious misconduct.

However, Beatson LJ stated in his judgment that he was "less sceptical" than Vos LJ, and said: "My tentative and very preliminary view is that, provided it is clear from either the charge brought by the GMC or the way the case against the doctor is presented at the hearing, that any adverse findings by the panel on matters identified in the charges might be accumulated in this way, so that the doctor is aware that this is a possibility, such an approach should in principle be open to the panel". Beatson LJ said that a small number of allegations of non-serious misconduct should not normally be held to constitute serious misconduct, but the position was different where there were a large number of such findings, particularly where they were of the same or similar conduct.

Compare jurisdictions: Arbitration

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